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  (Typography by Ulla Puggaard/Globe and Mail photo illustration)

 

(Typography by Ulla Puggaard/Globe and Mail photo illustration)

How Canada's sex-assault laws violate rape victims Add to ...

It’s a crime like no other. A violation of the self as well as the body – an assault on trust, on privacy, on control. It’s also an offence with an afterlife: a sense of bruising shame and guilt.

And it happens to women in Canada every 17 minutes.

Some of those women place calls to services such as the Vancouver Rape Relief and Women’s Shelter – about 1,400 of them last year alone.

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“These are not just women who live in poverty or need,” says Summer-Rain Bentham, one of the counsellors who answers their calls. “These are women who are teachers, doctor or lawyers; women whose husbands may be police officers or judges.”

But if these women are hoping for more than support – if they are hoping for justice – the phones might as well keep ringing.

Less than half of complaints made to police result in criminal charges and, of those charges, only about one in four leads to a guilty verdict.

Women know this. Which explains why, according to the best estimates, roughly 90 per cent of sexual assaults, even those referred to crisis lines, are never brought to the attention of the authorities.

Queen’s University law professor Pamela Cross, an expert on sexual assault, says that if someone she knows personally were attacked, “I would advise thinking very hard” before calling the police.

It wasn’t supposed to be this way. Thirty years ago, after decades of pressure by victims’ advocates, there was a revolutionary change to the Criminal Code – starting with the very word rape.

The idea was to change culture, not just laws, to acknowledge that sex crimes are not about sex, but acts of physical and psychological violence, and to make it clear that victims should not be blamed but emboldened to seek redress.

Instead of the loaded word rape – with all its moral and social baggage – three levels of sexual assault were written into law, each level of escalating gravity.

But getting rid of the legal term “rape” didn’t stop it. In fact, many argue that it profoundly defanged the justice system and has resulted in lighter – not tougher – sentencing.

Now, the least severe form of assault accounts for 98 per cent of charges – up from 89 per cent a few decades ago. This, despite any evidence that perpetrators are becoming less violent.

What went wrong?

Rape versus sexual assault

Until 1983, a woman’s word was not enough.

Without independent, corroborating evidence, there was little chance of convicting assailants. This, despite the fact that, according to the Justice Institute of British Columbia, 80 per cent of sex crimes happen in victims’ homes – and are committed by friends, acquaintances, husbands, sometimes family members.

That made women angry. And not just those who had been attacked. In her groundbreaking 1975 book Against Our Will, activist Susan Brownmiller argued that “sexual force is a pervasive process of intimidation that affects all women.”

Some credit Ms. Brownmiller with spurring rape-law reforms in America. In Canada, the rise of women’s studies at law schools and the spread of rape-crisis centres were part of the impetus for change. But Christine Boyle, a University of British Columbia law professor who was instrumental in judicial change, also points to the Charter of Rights and Freedoms.

“[It] became a sort of bedrock for legal reform,” she says.

Suddenly the idea of rights – to be respected, to be protected – came to the fore. Out went the need to for a witness to corroborate a victim’s story. So did the push for complaints to be filed immediately or not be considered credible.

Steps were also taken to make complainants more comfortable when reporting an attack to police; to encourage judges to bring greater sensitivity to notions of consent and privacy, and to dispel blame-the-victim mythologies that focused on the comportment or attire of rape victims.

Women who committed sexual assault would now be held to account too, not just men.

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